Attorney General Mukul Rohatgi and other senior advocates, including Raju Ramachandran, appearing for Yakub Memon, said since the two judges have differed on staying the death warrant, "there will be no order in law if one judge has stayed it and the other has not."
A two-judge bench of the Supreme Court on Tuesday, July 28, delivered a split verdict on a plea by Yakub Abdul Razak Memon, the lone death convict in the March 12, 1993 Mumbai blasts case, seeking a stay of his scheduled execution on July 30 and referred the matter to the Chief Justice of India to take a call.
While Justice A R Dave dismissed Yakub Memon's plea, Justice Kurian Joseph stayed the death warrant issued on April 30 for his execution.
Attorney General Mukul Rohatgi and other senior advocates, including Raju Ramachandran, appearing for Yakub Memon, said since the two judges have differed on staying the death warrant, "there will be no order in law if one judge has stayed it and the other has not."
The bench referred the matter to Chief Justice of India H L Dattu to take an urgent call at 4 pm in view of the divergence of opinion on the issue of the death warrant.
The bench also requested the Chief Justice to constitute an appropriate bench and list the matter for hearing on Wednesday, July 29.
Justice Dave dismissed the petition filed by Yakub Memon and said it will be open for the Maharashtra governor to dispose of his mercy plea before the scheduled date of execution of the death warrant.
While rejecting the petition in which Yakub Memon has contended that the correct procedure was not adopted in deciding his curative petition on July 21, Justice Dave disagreed with Justice Kurian on the issue of staying the death warrant issued by the TADA court in Mumbai on April 30.
"Sorry, I will not like to be part of staying the death warrant. Let CJI decide," Justice Dave said and quoted a couplet from Manu Smriti relevant to the issue.
Justice Kurian expressed his inability to agree with Justice Dave as there is a "procedural violation" in deciding the curative petition filed by Yakub Memon.
Once it is found that the procedure established under law is not followed while dealing with the curative petition, that too when the life of a person is concerned, and there is error apparent on the face that the mandatory process has not been followed, Justice Kurian said then such defects need to be cured.
While holding that Yakub Memon's curative petition is required to be heard afresh, Justice Kurian referred to the order dismissing his curative petition, saying, "The curative petition itself was not decided in accordance with the rules laid down by this court. That defect needs to be cured otherwise there will be a clear violation of the Right to Life under Article 21 of the Constitution."
Justice Kurian said the technicalities involved in dealing with the matter should not stand in the way of justice being done to a person as this court under the Constitution is for the protection of life of a person.
"The technicalities should not stand in the way as the law is for common man and also the law is not helpless and this court should not be rendered powerless," the judge added.
He noted that Article 21 deals with the Right to Life of a person and the same shall be deprived only in accordance with the procedure adopted by law.
"It has been noticed that the procedure by law was not followed in this case while depriving the right to life of a person," he said.
One of the judges made it clear that he would not hear any other related petition.
"Nothing to be heard along with this (Yakub's plea)," Justice A R Dave, heading the bench that also comprised Justice Kurian Joseph, said when Memon's lawyer pointed out that a fresh plea has been filed in pursuance of a "serious" query raised by Justice Joseph on Monday on procedures relating to curative petitions.
Justice Joseph had sought clarifications from Attorney General Mukul Rohatgi by saying that curative petitions should have been circulated among the three senior-most judges of the apex court and thereafter, would have been placed before the judges who decided the appeals and the review pleas, if they were available.
Senior advocate Raju Ramachandran, appearing for Memon, said the fresh plea, which is yet to be listed, dealt with the issue raised by Justice Joseph that the judges, who dealt with review plea, should be part of the bench deciding with curative petition.
"This is not just called for. With respect, I say no. This cannot be added," Justice Dave said.
"We are bound to reply to queries raised by My Lord," the counsel for Memon said.
"The judges, who were part of judicial process earlier, must be party to curative petition. It cannot be decided by judges who are strangers to the matters," Ramachandran said, asking, "How can strangers to the judicial process decide the curative petition".
He said this defect adversely impacted the right to life of the convict and the decision on curative plea was "liable to be challenged and clearly wrong".
Senior advocates T R Andhyarujina and Anand Grover also supported the submissions of the counsel for Memon.
Attorney General Mukul Rohatgi rebutted the submission on procedural aspects pertaining to curative petition, saying "this is not the point raised in the petition".
The only point raised is that the death warrant issued by the TADA court was illegal, he said, adding that no other petition can be filed before this court and "this has to be done before the chief justice of India."
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